CA9: Disclosure of information about a gun on a jail call was not an abandonment of expectation of privacy

Defendant’s disclosure on a jail telephone call that he secreted a gun in a closed container was not a waiver of an expectation of privacy. Aside from the use of the telephone, he otherwise was protective of privacy. Voluntary disclosure to law enforcement officers is far different. United States v. Monghur, 576 F.3d 1008 (9th Cir. August 11, 2009), amended 2009 U.S. App. LEXIS 26528 (9th Cir. December 4, 2009):

We think the Seventh Circuit’s reasoning in Cardona-Rivera makes perfect sense. When made to a law enforcement officer, an unequivocal, contemporaneous, and voluntary disclosure that a package or container contains contraband waives any reasonable expectation of privacy in the contents. See Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (recognizing that “reasonableness” remains the touchstone under the Fourth Amendment). The Constitution does not require the formality of a warrant in such circumstances.

The facts of this case are, however, sufficiently distinguishable from Cardona-Rivera that the logical underpinnings of the principle announced there find no parallel in the instant case. Cognizant that jail personnel might be listening, Monghur attempted to disguise the subject matter by using ambiguous, generic language to describe the handgun and its whereabouts: “the thing” was in a closet, “in the green.” It is relevant that Monghur never explicitly identified the contraband at issue. Although Agent McCamey had his reasoned suspicions, “the thing,” viewed in context, could have been a number of things, including contraband. Nor did Monghur specifically identify the container itself. Indeed, at the suppression hearing, Agent McCamey testified that based on the conversations he did not know that he was looking for a green plastic container when agents went to Wilson’s apartment. Perhaps most significantly, coded language aside, Monghur never made a voluntary disclosure directly to law enforcement. He was informing an associate where to find his gun in the hope that it could be removed before its discovery. That Monghur acted covertly knowing that calls were monitored or recorded–and that law enforcement might review the conversations–is materially different from directly and intentionally admitting to a police officer the contraband contents of a specific package or closed container.

. . .

Nothing about his jailhouse conversations with Bousley, which law enforcement later overheard, operates as a “direct and explicit” waiver of an expectation of privacy in a container hidden elsewhere. Cardona-Rivera, 904 F.2d at 1156. Monghur’s efforts to conceal the subject matter based on what he said on the phone demonstrate both an objective and subjective intention to preserve privacy—not to relinquish it. We therefore reject the Government’s position that Monghur waived his expectation of privacy in the closed container through his statements on the telephone.